Opinion
2014-01-22
Kathelean WILLIAMS, appellant, v. P. SPENCER–HALL, defendant, Institute for Community Living, et al., respondents.
Wade T. Morris, New York, N.Y. (Kenneth J. Gorman, Esq., P.C., of counsel), for appellant. Harris, King & Fodera, New York, N.Y. (Jose M. Gomez of counsel), for respondents.
Wade T. Morris, New York, N.Y. (Kenneth J. Gorman, Esq., P.C., of counsel), for appellant. Harris, King & Fodera, New York, N.Y. (Jose M. Gomez of counsel), for respondents.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated July 10, 2012, which denied her motion for summary judgment on the issue of liability against the defendants Institute for Community Living and John Doe.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability against the defendants Institute for Community Living and John Doe is granted.
When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle ( see Taing v. Drewery, 100 A.D.3d 740, 954 N.Y.S.2d 175; Ortiz v. Hub Truck Rental Corp., 82 A.D.3d 725, 918 N.Y.S.2d 156; Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659; Power v. Hupart, 260 A.D.2d 458, 688 N.Y.S.2d 194; see alsoVehicle and Traffic Law § 1129[a] ). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident ( see Maragos v. Sakurai, 92 A.D.3d 922, 923, 938 N.Y.S.2d 908; Balducci v. Velasquez, 92 A.D.3d 626, 628, 938 N.Y.S.2d 178; Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710; Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545). “A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” (Volpe v. Limoncelli, 74 A.D.3d 795, 795, 902 N.Y.S.2d 152 [internal quotation marks omitted]; see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726; Martinez v. Martinez, 93 A.D.3d 767, 768, 941 N.Y.S.2d 189; Giangrasso v. Callahan, 87 A.D.3d 521, 928 N.Y.S.2d 68; Parra v. Hughes, 79 A.D.3d 1113, 914 N.Y.S.2d 249; DeLouise v. S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 490, 904 N.Y.S.2d 761; Staton v. Ilic, 69 A.D.3d 606, 892 N.Y.S.2d 486; Lampkin v. Chan, 68 A.D.3d 727, 891 N.Y.S.2d 113; Klopchin v. Masri, 45 A.D.3d 737, 737, 846 N.Y.S.2d 311).
Here, the plaintiff demonstrated her prima facie entitlement to judgment as a matter of law against the defendant Institute for Community Living (hereinafter ICL) and the operator of its vehicle by submitting, inter alia, her own affidavit regarding the circumstances of the accident, including the fact that the vehicle in which she was a passenger, which was driven by the defendant P. Spencer–Hall, was stopped when it was struck in the rear by a vehicle owned by ICL ( see Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659). In opposition to this prima facie showing, ICL and the operator of its vehicle failed to raise a triable issue of fact.
ICL's contention that the motion should have been denied as premature pursuant to CPLR 3212(f) is unpersuasive. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant ( seeCPLR 3212[f]; Boorstein v. 1261 48th St. Condominium, 96 A.D.3d 703, 946 N.Y.S.2d 200; Dietrich v. Grandsire, 83 A.D.3d 994, 921 N.Y.S.2d 555; Trombetta v. Cathone, 59 A.D.3d 526, 874 N.Y.S.2d 169). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” ( Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516). ICL “failed to submit any affidavits establishing that facts existed which were essential to justify opposition to the motion but were not in its possession in light of the fact that discovery had yet to be completed” (Westport Ins. Co. v. Altertec Energy Conservation, LLC, 82 A.D.3d 1207, 1212, 921 N.Y.S.2d 90). In addition, ICL failed to demonstrate that “the facts essential to justify opposition to the motion were exclusively within the knowledge and control” of the plaintiff (Boorstein v. 1261 48th St. Condominium, 96 A.D.3d at 704, 946 N.Y.S.2d 200; see Williams v. D & J School Bus, Inc., 69 A.D.3d 617, 893 N.Y.S.2d 133).
Therefore, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of the liability of ICL and the operator of ICL's vehicle.